[EL] Electoral College Tie "Nightmare"

Thu Apr 18 08:13:07 PDT 2019

The newly-elected US House, not the US House elected in 2018, would choose the president if there is no electoral college majority.  This has been true since 1933, when the 20th amendment passed.  Before the 20th amendment passed, the old House chose the president.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147 

    On Thursday, April 18, 2019, 7:15:50 AM PDT, Samuel Bagenstos <sbagen at gmail.com> wrote:  

 Have to run off and teach, but the last time an election was decided under the back-up procedure, it was extremely divisive for our politics -- and that was at a time when (a) the 12th Amendment was relatively new, so that people were probably aware of the back-up procedure, particularly in light of the facts of the 1800 election that prompted the amendment; and (b) presidential elections were not yet widely understood as plebiscitary as they are today.  Today, I doubt many people even know about the procedure, and the questions about its legitimacy will be much greater.  So I think Marshall is right to say that our polity is ill-prepared for this eventuality.
On Thu, Apr 18, 2019 at 10:07 AM Doug Spencer <dougspencer at gmail.com> wrote:

Sam,
I think the normative appeal is that, like the Electoral College, the 12th amendment requires a majority as opposed to a plurality of votes to be the winner. That's not a sufficient justification ipso facto. Nor is it necessarily true anymore. Certainly not with respect to a majority of the population. The 26 states with Republican-majority House delegations represent a population of 151,361,595 which is 12.3 million fewer than the population of the 23 state Democratic-majority states. (According to the Census, there were 6 million fewer voters in the 26 Republican-majority states than the 23 Democratic-majority states). These differences outpace Trump's 2.8 million vote deficit in the 2016 election.
None of this speaks directly to your point about whole-state-delegations. At least in theory, the whole-state-delegation preserves the compromise to provide a voice both to "the people" (thus the House, not the Senate) and "the states." However, I'd love to hear a stronger defense from those who actually find the 12th amendment attractive on normative grounds, beyond historical ossification. My point was simply that the process for dealing with an electoral college tie is unambiguous, applicable to all candidates equally, and known in advance. In other words, I question whether America is "ill-prepared" for this scenario. (As Josh notes, we are ill-prepared for a scenario where the 12th amendment leads to a 25-25 tie in the House).
Doug
---

Douglas M. Spencer

Professor of Law & Public Policy

University of Connecticut

Visiting Professor, 2018-2019

Harris Public Policy

University of Chicago

(415) 335-9698 | www.dougspencer.org

Social Impact, Down to a Science.

On Thu, Apr 18, 2019 at 7:42 AM Samuel Bagenstos <sbagen at gmail.com> wrote:

Is there any normative justification for using the state-congressional-delegations-voting procedure as a backup in the case of an Electoral College tie?  Particularly in a world where people do go to the polls in every state to cast ballots for president?  (That it's been in the Constitution for 219 years is a fact that explains why the backup procedure is legally compelled, but it doesn't count as a normative justification in my view.)  All of the normative justifications for the Electoral College have a strong scent of rationalization these days, but the backup stretches the rationalization yet further (if I may mix a metaphor).
On Thu, Apr 18, 2019 at 8:29 AM Josh Douglas <joshuadouglas at uky.edu> wrote:

Indeed, the real "nightmare" scenario -- from a constitutional perspective -- is if a candidate does not receive the votes of 25 state delegations if the race is thrown to the House, as the 12th Amendment requires a "majority." Ned Foley (with a student) has done some interesting work on this true potential constitutional crisis. 

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On Thu, Apr 18, 2019 at 1:33 AM Doug Spencer <dougspencer at gmail.com> wrote:

The country would be ill-prepared in practice to manage a tie election in any circumstance. In present circumstances, the result could be very dark.

Setting aside the point that an electoral college outcome of 270-268 is not an "effective tie" since 270 is the threshold for winning, I'm not convinced the country is ill-prepared to manage an actual 269-269 tie. The country was ill-prepared in 1800, to be sure, but the 12th amendment tells us exactly how this scenario would play out:

...if no person have such majority [of electoral college votes], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member of members from two-thirds of the states, and a majority of all states shall be necessary to a choice.

If the 2020 election ends in an electoral college tie, each state delegation in the House gets one vote to decide the winner. By my count, although Democrats control the House by 38 seats, the breakdown of state delegations by party (presuming no deaths/resignations/special elections) would favor a Trump re-election:

| REP by 2+ | REP by 1 | SPLIT | DEM by 1 | DEM by 2+ |
| 25 | 1 | 1 | 3 | 20 |
|  | (FL) | (MI) | (AZ, CO, PA) |  |

A political outcome like this might feel controversial, but this rule has been embedded in the Constitution for 219 years, specifically for this "nightmare" scenario.
As a matter of trivia, had the Supreme Court abstained from interjecting in the 2000 election, AND the Florida electoral college votes been contested, AND the 12th amendment been triggered, the breakdown of state delegations favored a Bush victory (one abstention from a split state would have tipped the scales):
| REP | SPLIT | IND | DEM |
| 25 | 4 | 1 | 20 |
|  | (AR, IL, NV, MD) | (VT) |  |

---

Douglas M. Spencer

Professor of Law & Public Policy

University of Connecticut

Visiting Professor, 2018-2019

Harris Public Policy

University of Chicago

(415) 335-9698 | www.dougspencer.org

Social Impact, Down to a Science.
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-- 
Samuel Bagenstossbagen at gmail.comTwitter: @sbagen
University of Michigan homepage: http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen

-- 
Samuel Bagenstossbagen at gmail.comTwitter: @sbagen
University of Michigan homepage: http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen

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